Category: Courts and Politics

Understanding the significance of today’s Court of Appeal decision on the Rwanda removals policy

29th June 2023

Today the Court of Appeal ruled that the United Kingdom government’s controversial Rwanda removals policy was unlawful.

The judgment is here and there is a court-prepared summary here.

By saying the policy was itself unlawful, this means that each and every possible removal of any asylum seeker to Rwanda for their asylum application to be processed is currently unlawful. There are no current circumstances where a removal would be lawful.

The reason for the unlawfulness is that Rwanda is not a safe place for the processing of asylum claims:

This goes beyond the decision of the High Court that each particular removal happened to unlawful, on a case-by-case basis, because an appropriate process had not been followed. The High Court had said that the general policy was lawful, but each application of it so far had been unlawful.

The Court of Appeal now says that even the policy was unlawful. No removal, even with elaborate procedural compliance, would be allowed.

So both in practice and in the round the Rwanda removals policy has been held unlawful.

Opponents of the policy can celebrate – to an extent.

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Here are some further thoughts about what this decision signifies and does not signify.

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First, and from a practical perspective, the government’s far bigger problem was the initial High Court judgment. It does not really matter if a policy is (theoretically) lawful if the procedural protections required for each individual case are such that, in practice, removals are onerous and extraordinarily expensive.

I blogged about these practical problems when the High Court handed down its judgment:

Today’s ruling that the policy itself is unlawful makes no real difference to the government’s practical predicament with the policy in individual cases.

And the government appears not to have appealed the adverse parts of the High Court judgment.

The Home Secretary, and her media and political supporters, can pile into judges and lawyers because of today’s appeal judgment. But their more serious problems come from the last judgment, and not this one.

The Home Office is simply not capable or sufficiently resourced to remove many, if any, asylum seekers to Rwanda even if the policy was lawful.

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Second, the Court of Appeal decision today is likely to be appealed to the Supreme Court.

And, from an initial skim read of the relevant parts of the judgment, one would not be surprised if the Supreme Court reverses this Court of of Appeal decision.

Today’s Court of Appeal decision is not unanimous – the Lord Chief Justice was in the minority on the key question of whether Rwanda was a safe country for processing asylum claims.

The Supreme Court is (currently) sceptical of “policy” type legal challenges, and is likely thereby to defer to the Home Secretary’s view that Rwanda was a safe country for processing asylum claims – a view also shared by the two judges at the High Court and the Lord Chief Justice.

If the Home Office appeals to the Supreme Court then one suspects it is likely to win.

(Though it must be tempting to the Home Secretary to now abandon this – flawed – policy, and blame the judges.)

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Third, any appeal to the Supreme Court will take time. As it has taken until June 2023 for an appeal decision for a December 2022 High Court decision, it may be another six months before there is a Supreme Court hearing and decision.

And in that time, and unless a competent court decides otherwise, all removals will be unlawful as a matter of policy.

If the government wins at the Supreme Court then there would presumably be further delays while individual challenge-proof removal decisions are made.

In other words, the period for any actual removals before a general election next year will be short.

Even with a Supreme Court win, it will be that few if any asylum seekers are removed to Rwanda before a likely change of government.

(Though it cannot be readily assumed that an incoming government will change the policy.)

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Fourth, it should not be overlooked by opponents of the Rwanda removals policy that the appeal lost today unanimously and comprehensively on every other ground:

These defeats are not any cause for opponents of the policy to celebrate.

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Finally, there is a possibility of a work-around, which the government could adopt.

In the Abu Qatada case it was held by the courts that a deportation to Jordan for a trial was unlawful because of the use of evidence extracted by torture in the Jordanian legal system.

And so the United Kingdom government did a deal that the Jordanian legal system changed its ways so that the deportation could take place.

Abu Qatada was then, lawfully, deported.

(And then acquitted by the Jordanian court in the absence of such evidence.)

This deportation was presented by the United Kingdom government as a win against pesky human rights lawyers – when in fact the government had in reality complied with the judgment.

Similarly, the United Kingdom government may work with the Rwanda government to improve the asylum system, and correct the evidenced defects, so that concerns of the majority of the Court of Appeal are addressed.

No doubt the government would then similarly present any Rwanda removals on this basis as a win against pesky human rights lawyers – but again it would be the government complying with what the court would have approved.

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The judgment released today is long – and nobody commenting on the judgment today – politician or pundit – can have read it and properly digested it.

This post is thereby based only on initial thoughts and impressions.

That said, there is reason today for opponents of the Rwanda removals policy to celebrate.

But perhaps not too much.

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This has been cross-posted from The Empty City Substack.

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Telling the story of how the “serious disruption” public order statutory instrument was passed

14th June 2023

Here is a story about law-making told in different ways.

The law in question is a statutory instrument made under the Public Order Act 1986 – the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 – which comes into force tomorrow.

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By way of background

A statutory instrument is what is called “secondary legislation” and it has the same effect as primary legislation, as long as it is within the scope of the primary legislation under which it is made.

Statutory instruments are, in effect, executive-made legislation.  They still have to have parliamentary approval, but they are not open to amendment and rarely have debate or a vote.

Often the parliamentary approval of statutory instruments goes through on the nod, but sometimes they need to have a positive vote in favour.

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The government’s version

The first way of telling the story is from the government’s perspective.

The statutory instrument was put to a vote in the House of Commons on Monday with the Home Secretary herself leading the debate.

At the end of the debate there was a contested vote, which the government won:The (elected) House of Commons having shown its approval, the House of Lords did not pass a “fatal” motion against the statutory instrument.

Instead the House of Lords passed a motion (merely) regretting the Statutory Instrument:

The vote (against the government) was as follows:

The House of Lords also had a specific vote on a fatal motion, which was defeated:
And when the official opposition was criticised by for not supporting the fatal motion, a frontbencher was unapologetic:

And this is the first way of telling this story: there was a Commons vote; the Lords showed disdain but did not exercise any veto inn view of the Commons vote; and so the statutory instrument became law as the result of a democratic legislative process.

Told this way, the story is about how laws can and are made by such a democratic legislative process

Nothing to see here.

But.

But but but.

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The constitutionalist version

There is another way of telling this story.

This account starts with the Public Order Act 2023 when it was a bill before parliament.

At a very late stage of the passage of that bill the government sought to amend it so as to include provisions that were substantially similar to what ended up in the statutory instrument passed this week.

The government failed to get those amendments through the House of Lords. and so they were dropped from the bill before it became an Act.

As a House of Lords committee noted:

The Home Office could not answer these basic questions:For this committee to say that it believes “this raises possible constitutional issues that the House may wish to consider” is serious stuff.

What had happened is that the Home Office, having failed to bounce parliament into accepting these amendments into primary legislation by very late amendments, has come up with this alternative approach.

Told this alternative way, the story is not about how laws can and are made by a democratic legislative process.

Instead, the story is about how a democratic legislative process can be frustrated and circumvented by the executive.

Instead of using primary legislation so as to make substantial (and illiberal) changes to the law, the government has used statutory instrument which cannot be amended or considered in detail, and has used its whipped House of Commons majority to face down Lords opposition.

Plenty to see here.

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The story may continue

Yet this is not how the story (told in either way) may end.

The thing about statutory instruments is that, unlike primary legislation, they can be challenged at the High Court.

This means that there can sometimes be a sort of constitutional see-saw: the convenience of using statutory instruments (as opposed to primary legislation) can be checked and balanced by an application for judicial review.

And that is what the group Liberty is doing, and its letter before claim is here.

In essence, the argument is that – notwithstanding the parliamentary approval – the statutory instrument is outside the scope of the relevant provisions of the Public Order Act 1986.

Liberty seems to have a good point, but any challenge to secondary legislation is legally difficult and it is rare that any such challenge ever succeeds.

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The moral of the story?

The moral of the story, however it is told, is perhaps about the general weakness of our constitutional arrangements in respect of limitations placed upon rights and liberties.

A government, using wide enabling legislation, can put legislation into place that it cannot achieve by passing primary legislation.

This cannot be the right way of doing things, even if Labour is correct about these illiberal measures having the support of the House of Commons.

There are some things our constitutional arrangements do well – and here we can wave at Boris Johnson and Elizabeth Truss having both been found repugnant and spat out by our body politic.

But there are things our constitutional arrangements do badly – and the increasing use (and abuse) by the government of secondary legislation to do things they cannot (or will not) get otherwise enacted in primary legislation worrying.

And a government casually and/or cynically using (and abusing) wide enabling powers is not a story that usually ends well.

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Understanding the government’s judicial review of the Covid Inquiry

2nd June 2023

The government of the United Kingdom has commenced a legal challenge to the recently established Covid Inquiry – an inquiry that this government had itself established.

In the words of the Covid Inquiry spokesperson yesterday:

“At 16:00 today the Chair of the UK Covid-19 Public Inquiry was served a copy of a claim form by the Cabinet Office seeking to commence judicial review proceedings against the Chair’s Ruling of 22 May 2023.”

 

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This is an unusual judicial review.

Usually judicial reviews are brought against the government, and not by the government.

This is because judicial reviews are the normal legal means by which the High Court can be asked to assess whether a public body is acting within its legal powers.

Here, however, it is the government asking the High Court whether the Covid Inquiry – in effect, another public body – is acting within its legal powers.

Unusual, yes, but not absolutely unprecedented, as Dinah Rose KC – one of the greatest judicial review barristers – has pointed out on Twitter:

 

But that said, this judicial review is still unusual.

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What is this judicial review about?

From a legal perspective, it is about one word: jurisdiction.

To understand this we need to dig into some of the legal background.

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First, the Inquiry was created under the Inquiries Act 2005 – and this makes the Inquiry, in the lovely phrases, “a creature of statute” or “a statutory creature”.

What this in turn means is that any inquiry created under the Act – the Covid Inquiry and otherwise – does not have universal or inherent legal powers.

An inquiry created under the Act only has legal powers within the scope of the Act – what lawyers call the “vires” of the Act.

An inquiry created under the Act thereby cannot do something “ultra vires” the Inquiries Act.

And if an inquiry does a thing ultra vires the Inquiries Act then that thing can be quashed or declared unlawful by the High Court.

Here the government maintains that the Covid Inquiry has done something ultra vires the 2005 Act.

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Now we go to the section 21 Notice issued by the Covid Inquiry on 28 April 2023, in which the Inquiry demands various documents from the Cabinet Office.

This Notice is the main target of this judicial review.

This Notice is what the government is primarily asking the High Court to quash.

This judicial review is not the first attempt of the government to dislodge the Notice.

The first attempt was an Application dated 15 May 2023.

This Application was made under a provision of the Inquiries Act which provides:

“A claim by a person that— (a) he is unable to comply with a notice under this section, or (b) it is not reasonable in all the circumstances to require him to comply with such a notice, is to be determined by the chairman of the inquiry, who may revoke or vary the notice on that ground.”

But.

This Application was problematic.

You see, the Application was not actually asking the Inquiry to revoke or vary the Notice – both of which presuppose the Notice was valid in the first place.

No, the Application was telling the Inquiry that the Notice was outside the powers of the Inquiry.

As the Application stated:

“The Inquiry has no jurisdiction to request under rule 9, still less to compel under s.21, the provision to it of unambiguously irrelevant material.”

And the chair of the Inquiry picks this very point up in her ruling (emphasis added and the paragraph broken up for flow):

“I observe at the outset that I am far from persuaded that a wholesale challenge to the legality or vires of a section 21 notice is one that properly falls within the scope of section 21(4) of the 2005 Act.

“Although the application does not make this clear, I infer that it is made under subsection 21(4)(b) of the 2005 Act, which entitles the recipient of a section 21 notice to invite the Chair to vary or revoke the notice on the ground that “it is not reasonable in all the circumstances to require him to comply with [it]”.

“I understand that provision to apply to cases where the recipient of a notice accepts the notice’s validity, but wishes to engage with the Chair as to the reasonableness of complying with it. It does not obviously apply to a situation such as the present, where the recipient of the notice contends that the notice itself is unlawful.”

“The better procedure for raising arguments of that nature is, plainly, an application for judicial review.“

The chair was right – and this response indicates that she and her advisers may understand the scope of the Inquiries Act very well.

The government may have spent substantial public money on instructing the government senior external lawyer to put together a ten-page application, but ultimately the Application was the wrong horse on the wrong course.

A challenge to the jurisdiction of the Inquiry to issue the Notice should be done by judicial review – that is a formal action at the High Court.

Perhaps the government used the Application as a tactic just to get the Inquiry to change its mind, or at least state its legal position expressly – a previous post on this blog described the Application as, in effect, a letter before action.

And the Application did get the Inquiry to set out its legal position explicitly.

But the challenge the government does want to make to the Notice – and also to the Inquiry’s ruling – should be done by means of a judicial review.

Now it is.

And here is the government’s statement of facts and grounds.

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What are the merits of the judicial review – that is, will the government win?

To the extent that that the government seeks to rely on the Human Rights Act and privacy rights under Article 8 of the European Convention, the government warrants all the mockery it is getting.

This is the very government that is seeking to repeal the Human Rights Act and make it harder for claimants to rely on Article 8 privacy rights.

But.

There is more to the government’s legal case than that – and there is perhaps a route to the government succeeding at the High Court – or on appeal.

Here we need to go back to the Inquiry being a creature of statute.

This means that it is not open to the Inquiry to do just what it wants and to ask for whatever it wants.

The Inquiry can only do things and ask for things within the corners of the Inquiries Act – as augmented here by the Terms of Reference of the Inquiry.

The government is unlikely to win the judicial review with wide-ranging claims about general principles of “unambiguous relevancy” or otherwise.

If the government does succeed then it will be because that, in this particular case, the correct construction of the Inquiries Act, taken in tandem with the Terms of Reference, mean that, on this one occasion, the Inquiry has done something outside of its legal powers.

If the government can show this, then the Covid Inquiry loses – and the Notice falls away.

But.

The Covid Inquiry will also have been aware of this potential legal challenge when putting the Notice together, and it would seem that the measured content of the Notice and the precision of its requests place the Notice within the scope of the Inquiries Act when read with the Terms of Reference.

In other words, the legal(istic) “prep” of the Covid Inquiry for this potential challenge was started long ago, and – unlike the impression given by the Cabinet Office – not in a rush over the last couple of weeks.

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Finally, let us consider the greased piglet.

The former Prime Minister Boris Johnson is currently making more mischief than a dozen lords-of-misrule.

He appears to want to single-handedly sabotage the government’s legal case:

On this, let us be careful.

There is industrial-scale misdirection afoot.

Let us wait to see what is actually disclosed – and how the Inquiry assesses that disclosure.

And note in Johnson’s letter, at the seventh paragraph, the deft and camouflaged  “relevant” – and also note who he is proposing to conduct this all-important search.

We should not get too excited at such claims.

But that said, the sudden rampaging entry of Johnson into this otherwise delicate judicial review is extraordinary.

This is such an unusual judicial review – and in more than one way.

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Disclosure: I am a former central government lawyer.

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Tick tock, tick tock Cabinet Office – the Covid Inquiry stand-off this weekend

26th May 2023

My post on former Prime Minister Boris Johnson and the Cabinet Office lawyers should be ready to be posted on Monday, so in the meantime this post is about the stand-off this weekend between the Cabinet Office and the Covid Inquiry.

To recap: the Covid Inquiry has immense legal powers, and it has exercised one of those powers in serving a formal section 21 notice on the Cabinet Office.

This means that unless it has a legal reason not to do so, the Cabinet Office now has to comply with that request on pain of criminal sanction.

For inquiries under the Inquiries Act are powerful legal creatures, and their formal requests are not to be taken lightly.

See my previous post on this here.

The section 21 notice was dated 28 April 2023.

And you will see in the appendices the requests for information in respect of Johnson.

The deadline for the Cabinet Office to comply with the notice has now been set by the Inquiry chair to be 4pm on 30th May 2023 – that is this coming Tuesday

Remember Monday is a bank holiday.

And today is Friday.

The initial response of the Cabinet Office was to instruct the government’s senior external lawyer – at presumably great public expense – to make a legal(istic) objection to the notice.

The Inquiry chair deftly put that Cabinet Office legal application back in its box by a ruling this week.

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There now seems to be four possible outcomes of what is now a stand-off.

1. The Inquiry may extend the deadline again, but there is no evidence this has happened.

2. The Cabinet Office may comply with the request and provide the all information requested by Tuesday.

3. The Cabinet Office may not comply with the request, and it will provide either none of the information requested or not all the information requested – in effect daring the Inquiry chair to commence criminal proceedings which will then presumably be defended or otherwise challenged.

4. The Cabinet Office may make an urgent application to the High Court to either injunct the inquiry or quash the notice (or some other remedy) before the deadline of Tuesday.

If the choice is (4) then there really is not a lot of time.

I understand the Cabinet Office is considering its next step on the question of disclosure of what it unilaterally deems “unambiguously irrelevant” material.

We can bet it is.

But the stakes are now high – and there is not a lot of time to leisurely consider the position.

Unless there is an extension, the Cabinet Office has to decide before Tuesday whether to comply, to challenge, or to risk criminal sanctions.

Presumably the final decision is now with someone sufficiently senior who will then have to account for their decision.

But if the decision is to bring a legal challenge, there is almost no time left.

And if the Cabinet Office does not bring a legal challenge, then the commissioning of that expensive legal application from the so-called Treasury Devil looks a waste of public money.

If that application was sincere then the government’s position is that the Covid Inquiry chair is acting outside of her legal powers.

But if the Cabinet Office do not now go through with a legal challenge then it looks as if that application was made for tactical reasons, simply because the government does not want to disclose the documents.

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Which side will blink?

And if the government does not disclose the information requested, will the Covid Inquiry chair commence criminal proceedings against the government?

The impression given by her ruling this week is that she means business.

But how the Covid Inquiry chair responds to anything less than full disclosure by the Cabinet Office on Tuesday will indicate whether that business-like impression is correct.

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“Frankenchickens” and the law

3rd May 2023

Scrolling though Instagram while trying to think of a legal angle on the coronation worth writing about I came across this:

As it happens I have a lot of time for the broadcasting of Chris Packham and Megan McCubbin, and for my fellow Brummie Benjamin Zephaniah, and so I thought this may be an interesting case to write about for a blogpost.

What is being described as a “Frankenchicken”?

According to Zephaniah: “Decades of selective breeding have turned [chickens] into monstrous frankenchickens who can barely carry their own weight, and who lie in crowded barns, being burned by their waste.  We should not be treating animals like this.”

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The applicant – The Humane League – was kind enough to share their legal arguments with me.

At the heart of this legal case is a paragraph.

It is paragraph 29 in a schedule, in a schedule to some regulations, which are in turn regulations made under an Act of Parliament.

And this paragraph 29 provides:

“29.  Animals may only be kept for farming purposes if it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health or welfare.”

(My emphasis added, for a reason which will become obvious.)

The schedule containing this paragraph has effect by reason of regulation 4 of the relevant regulations, and this provides:And these regulations were made under section 12 of the Animal Welfare Act:

It is in this elaborate way that many things are regulated: provisions within provisions within provisions – a legislative pass-the-parcel.

The applicant in this case is contending the government misunderstands paragraph 29.

The applicant says paragraph 29 prohibits the keeping of animals for farming purposes unless it can reasonably be expected that, on the basis of their genotype or phenotype, that they can be kept without any detriment effect on their health or welfare.

The applicant says the government is in turn contending that paragraph 29 does not establish any such prohibition “and, moreover, [the government] disputes that the word “kept” refers to keeping at all”.

(I do not have access to the government’s legal argument.)

The applicant then contends that because the government misunderstands paragraph 29 the government thereby makes two further legal errors.

First, the misunderstanding means that the government has adopted and maintains policies and practices, including a Code of Practice and a system of monitoring and enforcement, founded on legal error – including a policy of non-enforcement.

And second, as the policies and practices do not discriminate against those who in breach of the paragraph, there is a consequential lack of equal treatment between producers.

The applicant’s press release sent to me states:

“The Department of Environment, Food and Rural Affairs (Defra), the defendant in the case, argues that it has no policy which condones or permits the use of Frankenchickens, despite fast-growing breeds being standard in the chicken industry.

“The case also challenges the ‘trigger system,’ Defra’s monitoring system aimed at detecting welfare issues associated with conventional chicken breeds, of which the overwhelming majority will be fast-growing.

“The trigger system requires slaughterhouse vets to report problems, but only if they occur above a given threshold – which The Humane League argues is far too high.

“A final ground of the case argues that the system in place is creating unequal treatment between chicken producers that comply with the law and those who do not.”

This, of course, is not an animal welfare blog – but from a law and policy perspective what is fascinating – and clever – about this case is that the applicant is seeking declaratory relief.

This means the court is being invited to declare the meaning of a legal instrument, in this case paragraph 29.

And this is a perfectly proper thing for a court to be asked to do.

The court is not being asked to directly quash any policy, but to say what a legal provision means.

And a paragraph deep in a schedule to regulations made under a statute is as much a statutory provision as section 1 of any Act of Parliament you can think of.

It also seems that there are differing views on what paragraph 29 means – and the view contended for by the applicant in this case has survived a permission hearing and so can be taken as at least arguable.

This is therefore not a simple try-on, but something the high court thinks is a serious legal question to be heard.

The framing of the case, however, means that if the applicant prevails then it will also pull away the basis of various policies and practices based on that paragraph.

That is an ambitious case to make, but again it is a legitimate and arguable one.

If the government has based policies and practices on a misunderstanding of the law then those policies and practices can fall too.

According to ITV, Defra argues that fast-growing chicken breeds are not inherently condemned to suffer health problems and that there is no scientific consensus saying so.

A spokesperson is quoted as saying:

“We are proud to have some of the highest animal welfare standards in the world.  All farm animals are protected by robust animal health and welfare legislation. This sets out detailed requirements on how farmed livestock, including meat chickens, must be kept.

The hearing is today and tomorrow.

I have no idea which side will win – though I am on the side of the chickens – but this is an example of litigation done well by a pressure group – and it is thereby an example of how such public interest litigation should be brought.

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You can read more on the Humane League’s campaign here.

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How Prince Harry’s legal case shows how the phone hacking story has returned to the start of a circle

26th April 2023

The news about the royals and hacking, well summarised and analysed by Joshua Rozenberg at his Substack, brings us back to the start of a circle.

For the phone hacking story only came about because of the royals.

The story came about because the Fleet Street press of the time – with their well-connected links with the Metropolitan police and the private investigation mini-industry, and unchecked by fearful politicians – sought access to information from the voicemails of the royal household.

Because the royal household became involved, the matter was passed to different police officers at the Metropolitan Police, who then raided and took compelling evidence from private investigators.

And in Scotland Yard that evidence was stored, and it became relevant to civil claims some years later, and then suddenly the scope and extent of tabloid phone hacking became apparent.

But without the royal household connection, the crucial evidence would not ever have been seized and stored, and without that evidence being available for later litigation, the hacking story may never have emerged.

What happened shows the practical importance of the monarchy to our politics, regardless of constitutional theory and conventional wisdom.

It seems only the monarchy has any autonomous power when the police and the media and the politicians collude.

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Such crude phone hacking now seems from another age – technologically, culturally, politically, legally.

After the current crop of cases it may well be that the phone hacking litigation comes to an end.

Prince Harry’s various cases will then perhaps be the other bookend to that provided by the original hacking of the royal household telephones.

But as the parties attend hearings at the Royal Courts of Justice in the Strand, the sophisticated surveillance and data retention by the state and technology companies continues at an unimaginable scale, again unchecked by either politicians or the media.

The phone hacking of a media generation ago seems like a garden shed affair compared with a huge urban conurbation of the exercise of “investigatory powers”.

Any abuses and misuses (or even uses) of the current technology will, in turn, probably never come to light so as to horrify.

Unless, of course, the abuses and misuses (and uses) affect the royal household.

And only then, maybe, will we ever get to hear about it.

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The indictment of a former president

4th April 2023

It would not matter if it were Jimmy Carter or George Bush, Barack Obama or Bill Clinton, Joe Biden or Donald Trump: the fact that a former or sitting president can be indicted, and so thereby is not above or outside the law, is significant.

This is not a partisan point, but a constitutionalist point.

It could be (say) Clinton, but it is Trump.

From a constitutionalist perspective, it does not matter who it is.

But it shows that no president – former or serving – is above the law.

This is a huge moment.

It may well be that Trump is not convicted of the charges against him.

To the extent the charges require proof of dishonesty, that may be difficult to show.

And Trump has spent his business and political careers gaming and manipulating process and leverages.

It is thereby more likely than not that Trump will not get convicted – especially as he now has, as a defendant, due process and constitutional protections on his side.

But.

The fact that it can be shown that he – or any other former president – can be nonetheless subjected to the normal process of law (whatever the outcome) is momentous.

Today is a big day.

It is huge – even if he is acquitted.

Huge.

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The tragedy of the Human Rights Act

27th March 2023

Here is a playfully mischievous tweet from the Guardian:

And how we can – and perhaps should – laugh at the irony of a newspaper that has attacked the Human Rights Act relying on that same Act when it is in its interests.

It is not even the first time – here is Associated Newspapers seeking to rely on the ECHR in respect of the Leveson Inquiry  and here is Associated Newspapers seeking to rely on the Human Rights Act in 2006.

And there is nothing – absolutely nothing – wrong with Associated Newspapers seeking to do this.

For that is what the law of fundamental rights is for: they can be relied by (or sought to be relied on) by anybody.

There are useful rights for the media generally and journalists in particular under the Act.

And in other jurisdiction – notably the United States – the media and journalists are conscious of the fundamental rights they can rely on and can point to provisions that protect those rights.

The tragedy of the Human Rights Act is that despite it providing rights on which the media and journalists can rely, it is also despised in many in the media and journalism.

There is a mismatch between the reputation of the Act and the substance of the Act.

In the United States it would be unthinkable – even now – for any media organisation to call for the repeal of the First Amendment.

If only media organisations in the United Kingdom were as protective of Article 10 of the ECHR.

But there is a disconnect.

The newspaper in-house lawyers know about these provisions, and they will not hesitate to rely on the ECHR and the Human Rights Act when they can.

But across the office floor, there is not attachment to Article 10.

And that is part of the tragedy of the Human Rights Act.

Over twenty years since it took effect, it is still seen by so many in politics and the media as a partisan ornament rather than a practical instrument.

So entrenched is the dislike for the legislation it is tempting to support repealing the Act and replacing it with a new statute with exactly the same provisions but with a far less contentious name.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

When William Rees-Mogg and James Goldsmith asked the courts to declare that the United Kingdom could not ratify the Maastricht Treaty – this week’s Substack essay

2nd March 2023

Over at Substack, the essay for paying subscribers is on the 1993 case brought by William Rees-Mogg and James Goldsmith against the Maastricht Treaty.

You can read it here.

For the reasons set out in the essay, it is fair to see the case as one of the origins of Brexit.

The essay begins as follows:

The case was described by the party who brought it as “the most important constitutional case for 300 years”.

This was the application for judicial review brought by the life peer William Rees-Mogg in July 1993, where he sought a High Court declaration that the legislation giving effect to the Maastricht Treaty was unlawful. Lord Rees-Mogg wanted the courts to tell parliament that a Bill, which was then about to become an Act of Parliament, was invalid. It was to be a strike at the very principle of parliamentary sovereignty.

His lead barrister for this ambitious claim was a recently appointed QC called David Pannick, and the high costs of the claim was financed by James Goldsmith (a year before he founded the Referendum Party).

The legal claim so concerned the John Major government that, in addition to instructing the then Treasury Devil (the government’s usual barrister for such cases) it also instructed one of the most brilliant barristers of the day (and still, happily, our day), Sydney Kentridge.

The stated grounds for the application also so alarmed the then Speaker of the House of Commons Betty Boothroyd to take it upon herself to warn from the speaker’s chair of the House of Commons “that the Bill of Rights will be required to be fully respected by all those appearing before the Court”.

The timing of the case was significant. When the claim was brought the Bill giving domestic effect to the Maastricht treaty was still before parliament, though it received royal assent before the hearing could take place.

The Maastricht Treaty had been signed in February 1992, but there was a sense that it was not inevitable that it would actually take effect.

The Danes had rejected the treaty by referendum in June 1992, before approving it in a further referendum in May 1993, and the French referendum of September 1992 had approved the treaty with only a narrow 51% majority. Also in September 1992 the United Kingdom’s currency had been ejected from the exchange rate mechanism on “Black Wednesday”. The European Union project was not seen by its opponents as inescapable. Not only was the Maastricht treaty contested, it was seen as capable of defeat.

Domestically the government had had problems getting the Bill through the House of Lords (including defeating Lord Blake’s amendment for a referendum) and had suffered a number of rebellions in the House of Commons.

And when the Bill received royal assent on 20 July 1993 but there was still what then Prime Minister John Major called a “ticking time bomb” of a later vote on the Social Protocol which would mean the treaty could not be regarded as ratified. Major was to win that vote only by making it a vote of confidence.

This was all very exciting at the time, and a great deal of the above – spirited public law claims led by Pannick, judges being brought into political matters, calls for referendums, close commons votes – seems rather familiar at our own time of Brexit. The case is well worth looking back on thirty years later.

And so this is the story of R. v Secretary of State for Foreign and Commonwealth Affairs ex p. Rees-Mogg.

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Those of you kind enough to be paying Substack subscribers can read it here – and if you are not yet a paying Substack subscriber, please consider becoming one.  The subscriptions help support my daily law and policy commentary on this blog.

Those of you who are Patreon supporters can read the essay here.

Anyone who donated money on PayPal to this blog in 2022 can have a free one year complimentary Substack subscription – just leave a comment marked “Private” saying when you donated below, with your email address.  (It is important that nobody pays twice for my drivel.)

If you are a regular reader of this blog and are currently not able to afford a paying subscription, also leave a comment below marked “Private” saying so, with your email address, and I will consider providing a short-term complimentary subscription.

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Last week’s essay was on how the courts improvised legal solutions in the hard case of George Blake.

The week before the essay was on the lore of Lady Justice, here.

And the week before that it was on the case of Jane Wenham and the last of the English witch trials.

Other essays include (in chronological order of the subject):

Dr Bonham’s case (1610) – and the question of whether parliament is really sovereign

Taff Vale (1901) – perhaps the most important case in trade union history

Wednesbury (1948) – the origin of the modern principle of legal unreasonableness

Malone (1979) – perhaps the most significant constitutional case of the last 50 years

These essays are on topics to do with legal history and legal lore – and they are in addition to my topical law and policy commentary here every weekday.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

What the judge said and did not say at the Just Stop Oil hearing, and what the judge should and should not have said

22nd February 2023

The from-court sensation last week was not about something in the High Court, the Old Bailey or any of the other august courts of the English capital, but about what happened at a hearing at Wolverhampton Magistrates’ Court.

It was a legal case that involved no great issue of law, and indeed there seems no dispute about the applicable law or even its application.

The sensation was not the result of sensational news reporting from an intrepid news reporter, for there seems to have been no media present at the hearing.

And there does not seem to have been any miscarriage of justice, and the findings of guilt and acquittals seem not to have been wrong on the available facts.

But there was a sensation, all the same.

Tweets went viral, with one tweet on the hearing recording 1.4 million views.

The case was taken up by the national press, and pundits were emphatic in their support or opposition to what happened.

A former home secretary said this:

And, from the opposing perspective, a well-known Canadian campaigner said this:

And all this for case in a local magistrates’ court, with no great issue of law, no obvious miscarriages of justice, and it seems no news reporters present to record what happened.

Regardless of the substance of what happened, it is an example of what happens when the legal system and modern social media (and after a lag, mainstream media) meet.

So what did happen at that hearing at Wolverhampton Magistrates’ Court?

*

The straight answer is that we perhaps cannot be certain absolutely what happened, as accounts differ, and there seems to have been no recording of the hearing.

But what we can work out is as follows.

We are told there were nine defendants.

(There is a reason for the “We are told” choice-of-words, as will become apparent.)

We are also told the offence was aggravated trespass, which is an offence under section 68 of the Criminal Justice and Public Order Act 1994:

The Crown Prosecution Service guidance on the offence is as follows:

The prosecutions were in respect of this incident from April 2022, as reported by the local news Express & Star:

According to that news report:

“Around 30 protesters from the Just Stop Oil coalition, including two on the roof of a petrol tanker, blocked the exit and entrance to the Esso fuel terminal in Wood Lane, Tyburn, Birmingham.

“Members of the group called Just Stop Oil said it had blocked a number of “key oil” terminals, including the site in Tyburn, Birmingham.

“Police warned of delays as ExxonMobil UK, one of the country’s largest privately-owned underground oil pipeline distribution networks, confirmed demonstrations were under way at some of its sites. It said it had shut down three of its sites.”

The Birmingham Evening Mail reported:

“A protester was carried away by five police officers during a new blockade at a Birmingham fuel terminal.

“Activists from Just Stop Oil again blocked access to the Esso site in Tyburn today, Sunday, April 3, despite more than 100 arrests across the country this week. A police cordon was in place in Wood Lane, where officers had been stationed since 7.30am. West Midlands Fire Service was also in attendance.”

Two days before, the Birmingham Evening Mail reported:

“A Just Stop Oil protester glued his hands and bare feet to the road during a nine-hour protest in Birmingham. Others have glued themselves to each other.

“Up to 45 protesters have been disrupting oil tankers heading in and out of the Esso Fuel Terminal on Wood Lane, Tyburn, near Erdington, since 4am today, Friday, April 1.”

The “Just Stop Oil” group behind the protests published this release at the time:

“For the third day in a row, supporters of Just Stop Oil have disrupted oil supplies from 7 critical oil facilities near London and Birmingham in support of their demand to the UK government to end new oil and gas projects in the UK.

“Early this morning people climbed on and blocked oil tankers at 5 critical oil terminals. A few have entered the loading bay at Buncefield oil terminal in Hertfordshire and are standing on oil tankers holding banners.

“At Kingsbury, Midlands and Esso terminals in Birmingham oil tankers have been prevented from leaving by people sitting in the road.”

*

From the contemporaneous news reports and the contemporaneous Just Stop Oil press release there can be no doubt that (a) disruption was caused and (b) disruption was intended to be caused.

As such, anyone who caused the disruption and intended to cause the disruption could have no serious defence to a charge of causing and intending to cause the disruption.

*

And so from the protest last April, a prosecution was brought this month at Wolverhampton Magistrates’ Court.

We are told that that the hearing involved cross-examination, and that evidence was put in by the defendants.

This would mean that notwithstanding the openly expressed intention by Just Stop Oil to cause disruption, and the evidence of the disruption caused, the defendants pleaded not guilty.  This would also accord with two of the defendants being acquitted.

Seven of the defendants were however found guilty.

The judge – District Judge Wilkinson – said some things.

And this is when things become less certain.

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A judge can say various things during a hearing – indeed, no one is usually in a position to tell them to shut up.

A judge making any significant decision will usually give reasons.

A judge imposing a sentence will give what are called “sentencing remarks” – which, in some national-profile cases are collected and published by the Judicial Office (previous examples are here).

But when a judge acquits they may also give reasons.

And sometimes what a judge says is set out in a prepared script, sometimes it is based on notes, and sometimes a judge may speak without notes.

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After the hearing, the Just Stop Oil published a press release:

This was quite the headline, given that there were seven defendants found guilty.

The press release also contained what it called a “summation” – which is not a legal term for anything a judge says – and this “summation” is quoted as if it was verbatim:

“It’s abundantly clear that you are all good people. You are intelligent, articulate and a pleasure to deal with. It’s unarguable that man-made global warming is real and we are facing a climate emergency. Your aims are admirable and it is accepted by me and the Crown Prosecution Service that your views are reasonable and genuinely held. Your fears are ably and genuinely articulated and are supported by the science.

“When the United Nations Secretary General gives a speech saying that the activity of fossil fuel companies is incompatible with human survival, we should all be very aware of the need for change. Millions of people, and I do not dispute that it may be as many as 1 billion people, will be displaced as a result of climate change.

“No-one can criticise your motivations. You all gave evidence that was deeply moving. I certainly was moved. The tragedy is that good people have felt so much, without hope, that you feel you have to come into conflict with the criminal justice system.

“Thank you for opening my eyes to certain things. Most, I was acutely and depressingly aware of, but there were certain things.

“I say this and I mean this sadly, I have to convict you. You are good people and I will not issue a punitive sentence. Your arrests and loss of good character are sufficient. Good people doing the wrong thing cannot make the wrong thing right. I don’t say this, ever, but it has been a pleasure dealing with you.

“You should feel guilty for nothing. You should feel proud that you care, have concern for the future. I urge you not to break the law again. Good luck to all of you.”

*

It was the screenshot of this “summation” that went viral.

And, as you can see, it is the last of the paragraphs quoted which provided the headline to the press release.

The impression of that last paragraph (given the “you” in the prior “… I have to convict you…”) is that the judge’s remark that “You should feel guilty for nothing” is addressed to all the defendants.

But that final remark is no more striking than the rest of the quoted text.

Did a judge really say all these things to defendants in a criminal case?

*

When I saw the viral tweets I did nothing to promote or amplify them.

In fifteen years of legal commentary I have learned that when a judge is reported to have said something sensational – especially if it accords with your world-view – it is better to wait for it to be verified before congratulating or castigating the legal system.

But pretty soon these viral judicial remarks prompted an equal and opposite reaction.  The Daily Telegraph reported:

The news report continued:

“But on Friday afternoon, the Judicial Office, which represents judges, admonished the group for “misquoting” the judge. […]

“In a rare intervention, the body accused them of taking a phrase “out of context” and issued an almost entirely different account, saying it was “what the judge actually said”

“[…] the Judicial Office said: “It was said to one of the defendants who in his evidence had said (through tears) that he felt guilty for not doing enough to save the planet for his daughter.”

(The judge’s statement was also posted on the Crimeline site, though inadvertently incorrectly titled as “full” sentencing remarks.)

*

An “almost entirely different account”?

This was becoming fascinating.

So far in this post I have relied on the Just Stop Oil press release for the from-court facts – hence the “We are told” formulation above – but the facts stated above – charges, number of defendants, disposals – do not seem to be controversial, or indeed controverted.

But now we have an alternative version of what happened.

The Judicial Office had contacted the judge, who provided his own note of what was said.

The judge’s note was:

“As a judge my overriding duty is always to uphold the law without fear or favour.

“This is not a court of morals it is a court of law, if I allow my own moral compass or political beliefs to influence my decisions and ignore the law where it is convenient to me to do so then the court becomes one where the rule of law no longer applies.

“If judges across the criminal justice system did the same then there would be no consistency and no respect for the law, decisions based on the personal beliefs of members of the judiciary cannot be consistent with the rule of law and the ideal that each law will apply to all equally.

“Trust in the rule of law is an essential ingredient of society and it will erode swiftly if judges make politically or morally motivated decisions that do not accord with established legal principles. Indeed I would become the self appointed sheriff if I acted in such a way.

“It is abundantly clear that you are all good people, intelligent and articulate and you have been a pleasure throughout to deal with. It is unarguable that man made global warming is real and that we are facing a climate crisis. That is accepted and recognised by the scientific community and most governments (including our own).

“Your aims are to slow or even stop the advance of global warming and therefore to preserve the planet not just for generations to come but for existing generations. No one can therefore criticize your motivations and indeed each of you has spoken individually about your own personal experiences, motivations and actions.

“Many of your explanations for your actions were deeply emotive and I am sure all listening were moved by them, I know I was. In simple terms you are good people with admirable aims.

“However if good people with the right motivation do the wrong thing it can never make that wrong thing right, it can only ever act as substantial mitigation.”

*

The Judicial Office also told reporters by email on Friday last week:

“The judge in the case pointed out that Just Stop Oil have have misquoted him and put in words he never spoke. He has sent [us] the text of what he actually said below.

“They have also quoted the line, “You should feel guilty for nothing” out of context. It was said to one of the defendants who in his evidence had said (through tears) that he felt guilty for not doing enough to save the planet for his daughter. It was not in the context that the seven convicted should feel guilty for nothing which would make no sense at all in the context of the judge having convicted them.”

*

I asked the Judicial Office whether the judge’s note was read out verbatum in court – or it it was just the basis of what was said in court.  I also asked for confirmation that the note was not prepared after the hearing.

I was told the following:

“[these] were words that the judge had prepared before sentencing and were said verbatim.  He made some other comments as part of his sentencing but these were based on notes he made in advance but were not delivered verbatim.  As there is no recording or transcript made of proceedings in the magistrate court and in the absence of fully written sentencing remarks, this was the best [we] could provide at short notice in terms of what the judge had said in his own words.”

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If you compare and contrast the two statements – what Just Stop Oil said and what the judge said through the Judicial Office – there are three main points of comparison and contrast.

*

The first part of the judge’s comments are not in the Just Stop Oil press release, and they are a statement of general principle.  As my fellow legal blogger Matthew Scott avers, “As an abstract statement of principle that could not have been put better.”

But as Scott also correctly observes, these remarks expressly introduce a tension between “politically or morally motivated decisions” and “established legal principles”.

As such, these prefatory remarks do not really help the judge against criticism – and they do not really change the framing of what then follows.

Yes, these general remarks provide a context – but they do not render what then follows as out of context.

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If we now jump to the end of the comments, and to the Judicial Office email, the judge, however, has a good point.

The “you should feel guilty for nothing” remark appears not to have been directed at all the defendants, but to only one and in a specific situation.

Just Stop Oil accepted this, and they amended part of their press release accordingly – though this was too late for the viral tweets.

Just Stop Oil, however, have not amended the sensational title of their press release, which still gives the impression that the statement was said to all the defendants:

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As for the middle part of the text, there is little substantial difference between the two accounts.

Other than the paragraph “When the United Nations Secretary General gives a speech saying that the activity of fossil fuel companies is incompatible with human survival, we should all be very aware of the need for change. Millions of people, and I do not dispute that it may be as many as 1 billion people, will be displaced as a result of climate change.” – which seems an unlikely frolic for a judge to have gone on in sentencing remarks – all the other comments attributed to him seem to have counterparts in the Just Stop Oil account.

In my view, the differences can be accounted for by brief notes being reconstructed after the event into prose.

Of course, Just Stop Oil should not have presented such reconstructed comments as being verbatim.  But it is a strain to say that their version of what was said is an “entirely different account”.

Indeed, had it matched the judge’s own notes exactly, it would look as if they had secretly recorded the judge.

I asked Just Stop Oil to explain how they put their version together. They said:

“We have notes from a defendant in court who cross checked them with others that were there and also notes from the defence lawyer […] who acted for one of the defendants.
“We corrected the press release when we became aware via Crimeline that one of the remarks was said to an individual defendant and we had taken it out of context.
“We have not received any communication from the judicial office and there appears to be nothing on the website so we’re slightly bemused by the framing in some of the media articles that suggests that we had some kind of official rebuke.
“We have not seen the information that was given to the press in its entirety but it is obvious that the Crimeline account stops short before the remarks around sentencing (since it contains no information about the sentences that were handed down).
“From looking at [lawyer’s] notes we can see that several of the remarks we have reported were made after sentences were pronounced.”
So it does appear the supposed verbatim press release was reconstructed – and that the statements were not said all at the same time.

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Which leaves the final question: was it right for the judge to say such things – regardless of the reported sequencing?

Here, we should rely on the judge’s own account of what he said.

Judges’ comments when sentencing are not a bad thing.

Every court day, up and down the country, criminal judges will say things in what are immediate situations that exhort the defendant to do better in future or admonish the guilty.

At worst, such statements are harmless or futile, and at best, such statements may be beneficial to those being exhorted or admonished, and thereby to society.

Not all sentencing remarks can or should be as impeccable as the ones published on the national judicial website.

But.

Judges can and do say things they should not say.

Here a judge was addressing protesters in respect of a highly publicised incident organised by a highly publicised pressure group.

It was entirely foreseeable that what he said would be publicised.

And even it was not foreseeable, and it was an otherwise unexceptional courtroom on a cold and routine day in Wolverhampton Magistrates’ Court, it was inappropriate for a judge to express such general political sentiments, either in sentencing remarks or otherwise.

As it happens, as someone with politics broadly as green as my surname, the sentiments expressed by the judge would be ones I would like to see expressed more often by politicians.

But imagine a latter-day Judge Pickles or Judge Argyle type judge expressing sentiments in support of what illiberal right-wing protesters had done on some other demonstration.

That would be wrong, and would call the administration of justice into question, and so what the judge in Wolverhampton said was wrong too.

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So, in (ahem) summation: Just Stop Oil erred in the title and content of their press release, and the judge erred more seriously in making the comments in the first place, even accepting his own version of his remarks.

And the real problem, as this blog averred recently, is with the refusal by the courts to provide or allow recordings of what judges say in open court.

There is no good reason for this prohibition, and scarcely even a bad reason – it is just unthinking conservatism.

Perhaps there should be a protest organised against it.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.